General licences for birds - restrictions

Framework for implementing restrictions

Background

In 2013 Scotland’s Minister for the Environment and Climate Change, Paul Wheelhouse, asked Scottish Natural Heritage (now NatureScot) to ‘examine how and in what circumstances we can restrict the use of General Licences to trap and shoot wild birds on land where they have good reasons to believe that crimes against wild birds have taken place’.

General Licences represent a relatively ‘light-touch’ approach to regulation, allowing persons to carry out activities without the need of applying for a specific licence. The rationale behind imposing a restriction on the use of General Licences is that light-touch regulation should not apply in situations where the regulator has lost trust or confidence. This outlines the approach that we have developed, with the Minister’s approval, to implement restrictions on the use of General Licences.

Application

The procedure will only apply to General Licences 1, 2 and 3 which are granted for the following purposes:

General Licence 1

To kill or take certain birds for the conservation of wild birds

General Licence 2

To kill or take certain birds for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables and fruit.

General Licence 3

To kill or take certain birds for the purpose of preserving public health, public safety and preventing the spread of disease.

Accordingly, General Licences 1-3 now include the following wording: “NatureScot reserves the right to exclude the use of this General Licence by certain persons and/or on certain areas of land where there is evidence to suggest that a wild bird or birds has/have been killed, injured and/or taken, and/or that an attempt has been made to do so other than in accordance with a licence, or where General Licences are being otherwise misused".

In cases occurring on or near to boundaries of land and where NatureScot has subsequently lost confidence in one or more land holdings, NatureScot reserve the right to exclude multiple areas of land.

While the wording provides for the exclusion of individuals, it is the intention that where NatureScot has robust evidence that a wild bird or birds has/have been killed, injured and/or taken, and/or that an attempt has been made to do so other than in accordance with a licence, or where General Licences are being otherwise misused NatureScot will exclude the area of land on which such evidence is found from General Licences 1, 2 and/or 3.

Individual restrictions will apply for a period of 3 years but may be extended if evidence of further offences is obtained during this period.

Evidence

Decisions to impose a restriction will only be based on evidence received from Police Scotland of an offence under the Wildlife and Countryside Act 1981 [“the 1981 Act”] having been committed in relation to wild birds and/or where the terms of General Licences were not being complied with. NatureScot has agreed an Information Sharing Protocol (ISP) with Police Scotland that allow the Police to pass on such evidence to NatureScot.

Examples of evidence recorded since 1st January 2014 which may be considered by NatureScot in any decision to impose a restriction include but are not limited to:

Illegally killed birds being found on the land in question;
Illegally poisoned baits being found on the land in question;
Illegal poison and/or pesticides being found on the land in question;
Cross-compliance decisions where the single farm payment has been withdrawn as a result of wildlife crime
Illegal placement, design or use of traps or methods that are not in compliance with the requirements of the General Licences.
Vicarious liability convictions relating to land on which General Licences are used.

The decision to restrict the use of a General Licence may be based on one or more pieces of evidence of this kind provided by Police Scotland to NatureScot and will be made on a caseby-case basis. In making a decision each piece of evidence will be assessed against criteria which may include:

The strength of evidence that those activities had been carried out by owners or managers of that land
The number or frequency of such instances
The actual or potential conservation impact of those activities;
The age of the evidence.
Any history of previous, similar instances.

Unexplained ‘stopped no-malfunction’ satellite tags may be considered by NatureScot as supporting information in making a decision, particularly where multiple losses have occurred on the same land. However such instances will not be considered as evidence under the terms of this Framework unless recorded as a crime by Police Scotland.

Recommendation to restrict

Evidence received by NatureScot from Police Scotland will be reviewed by NatureScot’s Licensing Manager. If, following review, the Licensing Manager has reason to believe that a wild bird or birds has/have been killed, injured and/or taken, and/or that an attempt has been made to do so other than in accordance with a licence, or where General Licences are being otherwise misused and considers that a restriction should be imposed, the Licensing Manager will recommend a restriction for NatureScot’s approval.

Notification

The Head of Wildlife Management will notify the owners and occupiers of the land in respect of which a restriction is recommended (“the Affected Parties”), in writing (“the Notification”). The notification will include a summary of the evidence on which the recommendation is based and will set out the reasons, the land to which the recommended restriction would apply and the duration of the recommended restriction (“the Decision Notice”). The possibility of a restriction being imposed will also be discussed with Police Scotland to ensure there is no risk to any potential prosecutions.

Right to respond to a Notification

The Affected Parties will be entitled to submit to NatureScot, within 14 days of the date of the Notification, a written response to the Notification, setting out any reasons why they consider that a restriction should not be imposed.

The Head of Wildlife Management will review this in conjunction with the relevant Area Manager and the Director of Sustainable Growth and where applicable will write to the Affected Parties to confirm that no restriction will be imposed.

The decision to restrict

Where no Response is received by NatureScot within 14 days from the date of the Notification, or where after considering any Responses that NatureScot continues to recommend a restriction, a restriction will be imposed. The Director of Sustainable Growth will make the decision (in consultation with the Head of Wildlife Management and the relevant Area Manager) and notify the Affected Parties in writing of the decision to impose a restriction, the reasons for that decision, the land to which the restriction applies and the duration of the restriction (“the Decision Notice”).

The Decision Notice will also be published on NatureScot’s licensing web pages and information shared with Police Scotland including Police Firearms Licensing.

The right to Appeal

Where a decision is made to impose a restriction, the Affected Parties will be entitled to appeal the decision within 14 days of the date of the decision. An appeal must be made in writing to the Head of Wildlife Management and must set out the grounds upon which it is proposed that the appeal be allowed.

An appeal shall have the effect of suspending the restriction from the date the appeal is received by the Head of Wildlife Management until the date of the Decision on Appeal, subject to the following exceptions:

an appeal against the geographical extent of the restriction will only have the effect of suspending the restriction insofar as it applies to the geographical area to which the appellant contends the restriction ought not to apply;
an appeal against the period of restriction shall not suspend the restriction unless any shorter period contended for by the appellant expires prior to the date of the Decision on Appeal
There has been an actual breach in the conditions of the General Licence.

The Head of Wildlife Management must notify the appellant of the outcome of the appeal in writing, setting out the reasons for the decision (“the Decision on Appeal”) and would seek to do so within four weeks of receipt of a written appeal.

Extending a period of restriction

Where, during a period of restriction, new evidence is received by NatureScot which provides reason to believe that a wild bird or birds has/have been killed, injured and/or taken, and/or that an attempt has been made to do so other than in accordance with a licence, or where General Licences are being otherwise misused and the Licensing Manager considers that the existing restriction should be extended, the Licensing Manager will recommend to the Head of Wildlife Management that the existing restriction be extended.

The procedure to be followed by NatureScot in the event that the Licensing Manager proposes recommendation to extend an existing restriction is the same as applies to a recommendation to propose a restriction, and the Affected Parties rights to respond to a Notification and to Appeal against a decision to extend an existing restriction are the same as in the event of a restriction.

Options available to landowners/managers under restriction

If an area of land is subject to a restriction on the use of a General Licence then it may be possible for persons working on that land to gain an individual licence to carry out activities that were previously permitted under General Licence. To do so they would need to apply for a licence directly to NatureScot licensing team. Any licence application would be judged on a case-by-case basis and would have to include the following information;

Justification for the particular need for a licence in reference
Justification for why there is no other satisfactory alternative to carrying out the licensed activity
Detailed plans of the work proposed to be undertaken (e.g. what methods will be employed, and where, who would be carrying out the work etc.)

If a licence was to be subsequently granted it would be subject to strict conditions and compliance monitoring measures to ensure that those conditions are being adhered to and would place reporting requirements on the licence holder for all activities permitted.

Version 1.2: 26 November 2020